Obama’s Anti-Democratic Assassinations: His Robot Killers Will Get You!

If Bush and Cheney had commissioned the white paper and used its justifications there would’ve been an outcry about Darth Vader and his minion perpetrating evil throughout the land. But Obama can have a “kill list” and no one says much. Nevertheless, the document is about as anti-democratic as you can get.

Here is the White paper on drones. It is used as a justification for targeted assassinations. I must say this issue taxes one’s ability to support broader political concepts, important as they may be, over a gut reaction. What I mean is that killing Al Qaeda operatives who are racist, sexist, anti-democratic, and potential threats to the United States doesn’t bother me much. But a couple of chief White House officials sitting in a room making the decision by themselves – essentially being judge, jury, and executioner – with no political or democratic oversight does bother me. The white paper focuses mainly on when lethal operations against a US citizen are justified. The paper makes for interesting reading because it seeks to clarify the issues but actually underscores their ambiguity and problems. Let’s take a look at a few of the issues of interest.

1. It is assumed that the President of the United States can respond to Al Qaeda on the basis of his constitutional responsibility to protect the country. The president can act quickly and on his own regard even in the case of an American citizen if that citizen is deemed to pose a threat or considered a member of an armed force challenging the safety of the United States. The legal question becomes whether or not a lethal operation against the US citizen is protected by the Fifth Amendment’s due process clause.

The issue includes the matter of where the US citizen is located such as on a battlefield or in another country and if he or she is afforded any special constitutional protection. The paper concludes that killing a US citizen can be justified even if it is outside the United States.

2. The strongest defense of immediate violent action is the concept of “imminence.” Imminence is a well understood concept in the literature on politically protected speech. That is, one has many freedoms of speech available but cannot create a clear and present danger, cannot create danger that is imminent or about to happen immediately. The old tried-and-true example of yelling “fire” in a crowded theater is applicable here. I can advocate aggressive action against the collective group (e.g. the police) in the political theory or hypothetical sense but I can’t tell someone to go get a gun and kill the person next to them. I cannot create with my speech or my symbolic behavior imminent danger.

This issue of imminence has been a conundrum for the government and the white paper solves the problem by redefining imminence because it is too difficult a standard to meet. It is just too difficult to show that an Al Qaeda operative whether he or she is a citizen or not is posing an immediate and imminent danger to the United States. Thus the white paper argues that the president or high-level official only needs to decide that the person of interest is a “continuing” threat to the US. This is a much easier standard to reach. In fact it is extremely vague and means that the target of interest does not have to be posing any genuine immediate threat, perhaps has never been charged with a crime, and may not even be in the United States or nearby. But they are a “continuing” threat if they are simply known to be an associate of Al Qaeda.

3. The absolute worst thing about the white paper is its claim that the government need not ask anyone’s permission, is required to make its case to no court, before carrying out a targeted assassination of US citizen. Again, a couple of governmental officials can make this decision on their own, can create a kill list, without acknowledging any additional authority. They can kill American citizens and don’t have to answer to anyone. This is dangerous business and clearly a direction contrary to the history and development of the United States.

In one opinion (see http://www.aclu.org/blog/national-security/justice-departments-white-paper- targeted- killing) court cases are clearly cited that require the government to afford a citizen due process before depriving him or her of life or liberty. This due process seems to evaporate even when explaining that some sort of due process might reduce the errors and mistakes that result in taking innocent lives. The white paper argues that it is not subject to judicial review, and even argues that review “after the fact” is not legally required. Hence, one cannot question the government’s decision about targeting a citizen even after the fact. One can at least imagine the security problems associated with getting a priori permission but these did not describe the importance of at least after-the-fact judicial review.

These justifications for targeted killing seem extravagant and potentially dangerous. Moreover, some sort of a priori judicial or congressional oversight is not difficult to establish.

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Posted on February 11, 2013, in Democracy, Political Conflict and tagged . Bookmark the permalink. 3 Comments.

  1. Hello Don,

    I am not as overwhelmed by the Big Brother aspect as you seem to be.

    First, let’s be honest. Yes, as you note “If Bush and Cheney had commissioned the white paper and used its justifications there would’ve been an outcry. ”

    That’s why they never committed their actions to paper, they just did it, usually with little finesse and even fewer successes. My opinion is that they and their minions committed far more unspeakable crimes.

    Second, Today’s shrinking world is teeming with unbalanced or dangerously doctrinaire “leaders” with access to bad, bad weaponry. One of the reasons we elect an Obama is because we believe he can best face these foes – excuse me — fellow citizens of Village Earth. An example of this is this very decision to justify/codify his actions.

    As the guy who was sitting in the hotseat when we got bin Laden, he’s won some cred here.

    Will I have the same trust in his successor, particularly if the pendulum of public opinion swings back to what’s left of the ashes of the GOP? Probably not. But I do hope they at least have the balls to state their intentions, as did Obama.

  2. Ellis: “even if it is outside the United States”

    Comments:
    * Certainly if the person is inside the United States any “kill order” becomes problematic. If a drone can track someone inside the United States, the FBI can generally capture or corner them.

    * The case of Jose Padilla though was problematic as he was captured in Chicago

    Ellis: “only needs to decide that the person of interest is a “continuing” threat to the US”

    Comments:
    The Anwar al-Awlaki case may best illustrate the issue here. Anwar al-Awlaki was the Muslim cleric, and naturalized American citizen, that encouraged the Psychiatrist who killed 13 people at Fort Hood. The US government had no means of arresting and trying the Anwar al-Awlaki. His influence over the shooter, who would want me to mention his name, and other recruits demonstrated that he was an important al Qaeda operative and a continuing threat

    Ellis: “Never been charged with a crime, and may not even be in the United States”

    Comments:
    * In 1943, the United States briefly struggled with a similar issue. It was the question of whether they should “assassinate” Admiral Isoroku Yamamoto, Commander-in-Chief of the Japanese Imperial fleet. Ultimately, he was intercepted over the island of Bouganville, shot down, and killed. I don’t see much difference between that and someone operating as a soldier on a foreign battlefield. An American fighting with the enemy becomes “the enemy”. Again, during War War II or the Civil War, we dd not hold trials for Americans being shot at ON a battlefield or for Confederate soldiers prior to a battle. “Let’s see. How can we appraise them of their rights? Do we have attorneys representing them?”

    * Again, if the person is in the United States and can be apprehended there is no justification for killing him without warning. Similarly, if a drone can target someone in the United States the FBI can probably catch him. In the hinterlands of Afghanistan, Pakistan, Yemen et cetera, you really can’t catch people and read them their Miranda rights. Thus, acting against enemy operatives of stateless entities outside the country becomes quite different than apprehending suspects in the United States. Similarly, if a drone could target a person in France, the United States Government could, and probably would, ask the French to apprehend and extradite the “target”. The tribal areas of Pakistan don’t provide that same option; even though the individuals pose a significant and continuing threat.

    Ellis: “cases are clearly cited that reqire the government to afford a citizen due process before depriving him or her of life or liberty”

    Comments:
    * Consider the case, during the 1970s as I recall, of the Texas Tower Sniper. Nobody gave him due process as he was firing on students and others at a Texas University. He could not be apprehended. Thus, law enforcement had to respond with lethal force. Police have to do this all the time. In the case of a shooting war, one cannot take up arms in a fortress on a foreign battlefield or other unapproachable location and then complain if you get shot or bombed from the air. The ACLU logic implied by Professor Ellis would allow foreign enemies use American traitors to as unassailable human shIelds against any kind of attack.

    Ellis: “white paper argues that it is not subject to judicial review, and even argues that review ‘after the fact’ is not legally required”

    Comments:
    We may have a point of agreement here. While I am not sure whether judicial review of every single action makes sense, surely Congressional oversight seems in order. Of course, now that the President has granted himself the authority to “RULE BY DECREE”, Congress may have become an irrelevant anachronism “imposed upon us by flawed men from an ancient era, now long dead”–much like the Magna Carta, the Common Law, and, of course, the Constitution.

    Comments:
    Ellis: “One can at least imagine the security problems associated with getting a priori permission . . .

    “some sort of a priori judicial or congressional oversight is not difficult to establish”

    Comments:
    * Drone targets are often fleeting. Even so, one can imagine the ACLU demanding a priori hearings about each target, perhaps with an attorney for the target present. Nor does a hearing into each target-location combination seem completely beyond the pale. Can you spell “tip off”?

    * “Nothing is impossible for the man who doesn’t have to do it himself.” A. H. Weiler

    * Perhaps a topic for next week’s blog

    Concluding Comments:
    Let us now consider the likes of Anwar al-Awlaki and Adam Gadan, long-time American, and arrogant, spokesman for al Qaeda–somewhat quiet of late. Americans such as these, working with and acting as an active part of, an enemy army, would seem to forfeit some rights. Such people might in fact come under the Uniform Code of Military Justice; or, at times, they might just come “under the jurisdiction” of a Hellfire missile.

    Prudence, then, would seem to demand considering the concerns of Professor Ellis in light of the fleeting nature of “actionable intelligence”; and the constraints that imposes during a war.

    In the end though, one must share the underlying concerns of Professor Ellis. This seems particularly important in light of the recent penchant of the current President for “executive orders”, and the ensuing precedents those unchallenged orders set. The concerns seem doubly important in the face of a cowed Republican Opposition.

    DJ

  3. Stripping away all the extraneous issues, you are left with one simple truth that is undeniable. Our forefathers and mothers, the founders, soldiers dying in battle, and the great accumulation of wisdom pertaining to freedom and liberalism does not lead you to a place where your country allows a couple of individuals to be Judge jury and executioner. No judicial or communal oversight of state run executions is just what we are fighting against – not for.

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